Title: PRESENTATION ON THE DIPLOMATIC IMMUNITIES AND PRIVILEGES AMENDMENT BILL
1PRESENTATION ON THE DIPLOMATIC IMMUNITIES AND
PRIVILEGES AMENDMENT BILL
- BY SANDEA DE WET
- PRINCIPAL STATE LAW ADVISER (IL)
- 29 AUGUST 2001
2REASONS FOR AMENDMENT BILL
- PARLIAMENT APPROVED SOUTH AFRICAS ACCESSION TO
THE UNITED NATIONS CONVENTIONS ON PRIVILEGES AND
IMMUNITIES OF THE UNITED NATIONS AND SPECIALIZED
AGENCIES ON 26 AND 27 OF JUNE 2001 - THERE IS A LEGAL OBLIGATION TO INCORPORATE THESE
PROVISIONS IN SOUTH AFRICAN LEGISLATION
3REASONS FOR AMENDMENT BILL
- SOUTH AFRICA ACCEDED TO THE VIENNA CONVENTIONS ON
DIPLOMATIC RELATIONS AND ON CONSULAR RELATIONS IN
1989 WITHOUT ANY RESERVATIONS - A SELECTIVE INCORPORATION OF VIENNA CONVENTIONS
ON DIPLOMATIC RELATIONS AND ON CONSULAR RELATIONS
WAS HOWEVER MADE IN THE ACT - LEGAL OBLIGATION TO INCORPORATE ALL PROVISIONS OF
THE VIENNA CONVENTIONS IN SOUTH AFRICAN
LEGISLATION
4 REASONS FOR AMENDMENT BILL
- APPLICATION OF IMMUNITIES AND PRIVILEGES TO
INTERNATIONAL ORGANIZATIONS/ SPECIALIZED AGENCIES
DONE WITHOUT PROPER LEGAL BASIS - APPLICATION OF IMMUNITIES AND PRIVILEGES TO
INTERNATIONAL ORGANIZATIONS/ SPECIALIZED AGENCIES
DONE ON AN AD HOC BASIS WITHOUT EQUALITY IN
TREATMENT OF THE VARIOUS ORGANIZATIONS
5REASONS FOR AMENDMENT BILL
- INCREASING NUMBER OF INTERNATIONAL MEETINGS AND
CONFERENCES HOSTED BY SOUTH AFRICA - NO PROVISION IN THE PRESENT ACT FOR THE GRANTING
OF PRIVILEGES AND IMMUNITIES FOR PURPOSES OF SUCH
MEETINGS AND CONFERENCES - EXCESSIVE ADMINISTRATIVE BURDEN WHEN GRANTING
PRIVILEGES AND IMMUNITIES FOR THE PURPOSES OF
SUCH MEETINGS AND CONFERENCES
6REASONS FOR AMENDMENT BILL
- ACT IS OUTDATED AS INTERNATIONAL RELATIONS GREW
EXTENSIVELY SINCE 1989 WHEN ACT WAS PROMULGATED -
- 110 DIPLOMATIC MISSIONS AND 56 CONSULAR OFFICES
WERE ESTABLISHED - 18 OFFICES OF INTERNATIONAL ORGANIZATIONS/
SPECIALIZED AGENCIES WERE OPENED - HOSTING OF INTERNATIONAL CONFERENCE AND MEETINGS
SUCH AS UNCTAD, NAM, WCAR, WSSD,ETC
7OBJECTIVES OF AMENDMENT BILL
- BRING THE ACT IN LINE WITH SOUTH AFRICAS
INTERNATIONAL OBLIGATIONS BY - - INCORPORATING CONVENTIONS ON PRIVILEGES AND
IMMUNITIES OF UN AND SPECIALIZED AGENCIES IN
SOUTH AFRICAN LEGISLATION - INCORPORATING ALL THE PROVISIONS OF THE
CONVENTIONS ON DIPLOMATIC AND CONSULAR RELATIONS
IN SOUTH AFRICAN LEGISLATION
8OBJECTIVES OF AMENDMENT BILL
- BRING THE ACT IN LINE WITH SOUTH AFRICAS
INTERNATIONAL OBLIGATIONS BY - - HARMONIZING AD HOC PRACTICES AND EQUALITY IN
TREATMENT OF THE VARIOUS INTERNATIONAL
ORGANIZATIONS - PROVIDING FOR THE GRANTING OF IMMUNITIES AND
PRIVILEGES WITH REGARD TO INTERNATIONAL MEETINGS
AND CONFERENCES
9OBJECTIVES OF AMENDMENT BILL
- UPDATE THE ACT BY -
- BRINGING EXISTING PROVISIONS IN LINE WITH
PROVISIONS IN THE CONVENTIONS - DELETING DUPLICATIONS
- CORRECTING CONTRADICTIONS
- LESSEN THE ADMINISTRATIVE BURDEN
10OVERVIEW OF PROPOSED AMENDMENTS
- ARTICLE 1 - DEFINITIONS
- MEMBER OF A FAMILY
- ORGANIZATION
- SPECIAL ENVOY OR REPRESENTATIVE
- SPECIALIZED AGENCY
- CONVENTIONS
- ACT
11DEFINITIONS
- MEMBER OF FAMILY MEANS -
- THE SPOUSE
- UNMARRIED CHILD UNDER 21
- UNMARRIED CHILD BETWEEN AGES OF 21 AND 23
UNDERTAKING FULL TIME STUDIES - OTHER UNMARRIED CHILD OR FAMILY MEMBER OFFICIALLY
RECOGNIZED BY SENDING STATE AND ISSUED WITH
DIPLOMATIC /OFFICIAL PASSPORT
12DEFINITIONS
- ORGANIZATIONS MEANS -
- INTERGOVERNMENTAL ORGANIZATION OF WHICH TWO OR
MORE STATES ARE MEMBERS AND WHICH THE MINISTER
HAS RECOGNIZED FOR THE PURPOSES OF THE ACT
13DEFINITIONS
- SPECIAL ENVOY/REPRESENTATIVE MEANS -
- PERSON DULY AUTHORIZED BY SENDING STATE
- UNDERTAKING A SPECIAL MISSION/TASK IN SOUTH
AFRICA - USUALLY FOR A LIMITED PERIOD
14DEFINITIONS
- THIS ACT INCLUDES-
- THE VIENNA CONVENTIONS ON DIPLOMATIC RELATIONS
AND ON CONSULAR RELATIONS AND - THE CONVENTIONS ON THE IMMUNITIES AND PRIVILEGES
OF THE UNITED NATIONS AND SPECIALIZED AGENCIES
15SECTIONS 2, 3 AND 4
- CLEAR DISTINCTION BETWEEN GRANTING OF IMMUNITIES
AND PRIVILEGES TO - - DIPLOMATIC MISSIONS AND CONSULAR POSTS
- HEADS OF STATE AND SPECIAL ENVOYS
- UNITED NATIONS, SPECIALIZED AGENCIES AND
ORGANIZATIONS - INTERNATIONAL CONFERENCES AND MEETINGS
16SECTION 2
- IMMUNITIES AND PRIVILEGES OF DIPLOMATIC MISSIONS
AND CONSULAR POSTS AND MEMBERS THEREOF - VIENNA CONVENTIONS SHALL HAVE THE FORCE AND
EFFECT OF LAW IN SOUTH AFRICA - VIENNA CONVENTION ON DIPLOMATIC RELATIONS APPLY
TO DIPLOMATIC MISSIONS - VIENNA CONVENTION ON CONSULAR RELATIONS APPLY TO
CONSULAR POSTS
17SECTION 3
- IMMUNITIES AND PRIVILEGES OF HEADS OF STATE AND
SPECIAL ENVOYS/ REPRESENTATIVES - IMMUNE FROM CRIMINAL AND CIVIL JURISDICTION OF
COURTS - ENJOY SUCH IMMUNITIES AND PRIVILEGES
- IN TERMS OF CUSTOMARY INTERNATIONAL LAW
- ANY AGREEMENT, OR
- AS THE MINISTER MAY CONFER UPON HIM/HER BY NOTICE
IN THE GAZETTE
18SECTION 4
- IMMUNITIES AND PRIVILEGES OF UNITED NATIONS,
SPECIALIZED AGENCIES AND ORGANIZATIONS - CONVENTION ON PRIVILEGES AND IMMUNITIES OF THE
UNITED NATIONS SHALL APPLY TO THE UNITED NATIONS
AND ITS OFFICIALS IN SOUTH AFRICA AND - SHALL HAVE THE FORCE AND EFFECT OF LAW IN SOUTH
AFRICA
19SECTION 4
- IMMUNITIES AND PRIVILEGES OF UNITED NATIONS,
SPECIALIZED AGENCIES AND ORGANIZATIONS - CONVENTION ON PRIVILEGES AND IMMUNITIES OF THE
SPECIALIZED AGENCIES SHALL APPLY TO THE
SPECIALIZED AGENCIES AND ITS OFFICIALS IN SOUTH
AFRICA AND - SHALL HAVE THE FORCE AND EFFECT OF LAW IN SOUTH
AFRICA
20SECTION 4
- IMMUNITIES AND PRIVILEGES OF UNITED NATIONS,
SPECIALIZED AGENCIES AND ORGANIZATIONS - ORGANIZATIONS OTHER THAN UN OR SPECIALIZED
AGENCIES RECOGNIZED BY THE MINISTER - ENJOY IMMUNITIES AND PRIVILEGES AS DETERMINED IN
ANY AGREEMENT OR - IF IT IS NOT EXPEDIENT TO CONCLUDE AN AGREEMENT
AS MAY BE DETERMINED BY THE MINISTER AND
PUBLISHED BY NOTICE IN THE GAZETTE
21SECTION 4
- IMMUNITIES AND PRIVILEGES PERTAINING TO
INTERNATIONAL CONFERENCES AND MEETINGS - - FOR DURATION OF CONFERENCE/ MEETINGS
- MINISTER TO RECOGNIZE CONFERENCE/ MEETING
- AS SPECIFIED IN THE UN CONVENTION AND THE
SPECIALIZED AGENCIES CONVENTION, OR - PROVIDED FOR IN ANY AGREEMENT
- CONFERRED BY THE MINISTER BY NOTICE IN THE
GAZETTE
22SECTION 5
- ANY AGREEMENT CONFERRING IMMUNITIES AND
PRIVILEGES SHALL BE PUBLISHED BY NOTICE IN THE
GAZETTE - IF NOT EXPEDIENT TO CONCLUDE AN AGREEMENT THE
MINISTER MAY CONFER IMMUNITIES AND PRIVILEGES AS
MAY BE SPECIFIED IN A NOTICE IN THE GAZETTE
23REMAINING SECTIONS
- PURPOSE OF AMENDMENTS REFLECTED IN REMAINING
SECTIONS- - TO BRING THE SECTIONS IN LINE WITH PROVISIONS OF
THE CONVENTIONS - TO DELETE ANY DUPLICATIONS
- TO CORRECT ANY CONTRADICTIONS
- TO LESSEN THE ADMINISTRATIVE BURDEN
24SECTION 6
- REPEAL SECTION 5 OF THE PRINCIPAL ACT ON
PUBLICATION OF AGREEMENTS - THE BILL NOW GIVES FORCE AND EFFECT TO THE
CONVENTIONS - NOT NECESSARY TO GIVE FORCE AND EFFECT BY
PROCLAMATION - PUBLICATION IN A NOTICE FOR INFORMATION PURPOSES
IS PROVIDED FOR
25SECTION 7
- REPEAL SECTION 6 OF THE PRINCIPAL ACT ON THE
NON-APPLICATION OF IMMUNITIES AND PRIVILEGES - DUPLICATES ARTICLE 34 OF THE VIENNA CONVENTION ON
DIPLOMATIC RELATIONS - DIFFERENT PROVISIONS APPLY TO MISSIONS AND
INTERNATIONAL ORGANIZATIONS IN TERMS OF THE
RESPECTIVE CONVENTIONS - PROVIDE FOR WAIVER OF IMMUNITIES AND PRIVILEGES
TO BE DONE EXPRESSLY AND IN WRITING
26SECTION 8
- AMEND SECTION 7 OF PRINCIPAL ACT ON THE REGISTER
OF PERSONS ENTITLED TO IMMUNITIES AND PRIVILEGES
TO PROVIDE FOR THE INCLUSION OF PERSONS ENJOYING
IMMUNITIES AND PRIVILEGES IN ACCORDANCE WITH - THE UN CONVENTION AND
- THE CONVENTION ON SPECIALIZED AGENCIES
27SECTION 9
- REPEAL SECTIONS 8 AND 9 OF THE PRINCIPAL ACT.
SECTION 8 ON EXEMPTION FROM TAXATION - DUPLICATES ARTICLE 34 OF THE VIENNA CONVENTION ON
DIPLOMATIC RELATIONS - DIFFERENT PROVISIONS APPLY TO MISSIONS AND
INTERNATIONAL ORGANIZATIONS IN TERMS OF THE
RESPECTIVE CONVENTIONS - PROVISION OF RECIPROCITY NON APPLICABLE TO
INTERNATIONAL ORGANIZATIONS
28SECTION 9
- REPEAL SECTION 9 OF PRINCIPAL ACT ON EXEMPTION OF
GOVERNMENTS, ORGANIZATIONS AND INSTITUTIONS IN
RESPECT OF IMMOVABLE PROPERTY - NO NEED FOR PROVISION
- PRINCIPLE OF EQUITY IN TREATMENT AND NOT
RECIPROCITY APPLICABLE - PROVISIONS OF THE CONVENTIONS APPLY
29SECTION 10
- AMENDMENT OF SECTION 11 OF PRINCIPAL ACT ON
ADJUSTMENT OF LOSS OF REVENUE TO LOCAL
AUTHORITIES AND STATUTORY PUBLIC UTILITY
ORGANIZATIONS - INCIDENTAL AMENDMENT TO DEAL WITH THE REPEAL OF
SECTIONS 8 AND 9 OF THE PRINCIPAL ACT
30SECTION 11
- SECTION 12 OF THE PRINCIPAL ACT ON THE
RECOGNITION OF CERTAIN BUILDINGS IS REPEALED - DISCRETION NEVER EXERCISED UNDER THIS PROVISION
- NOT NECESSARY TO HAVE THIS PROVISION
- COSTLY TO IMPLEMENT
31SECTION 12
- AMENDMENT OF SECTION 14 OF THE PRINCIPAL ACT ON
ACQUISITION, CONSTRUCTION, RELOCATION,
RENOVATION, REPLACEMENT, EXTENSION OR LEASE OF
IMMOVABLE PROPERTY IN THE REPUBLIC - TO INCLUDE UNITED NATIONS, SPECIALIZED AGENCIES
AND ORGANIZATIONS - TO ADD THE REQUIREMENT THAT THE PROPERTY HAS BEEN
RECOGNIZED FOR THE USE OF EMBASSIES,
CHANCELLERIES, OFFICES
32SECTION 13
- SECTION 15 OF THE PRINCIPAL ACT ON LIABILITY
INSURANCE REQUIREMENTS - INCIDENTAL AMENDMENT TO INCLUDE ALL PERSONS WHO
ENJOY IMMUNITIES AND PRIVILEGES UNDER THE ACT
33SECTION 14
- REPEAL OF SECTION 16 OF THE PRINCIPAL ACT ON
APPLICATION OF IMMUNITIES AND PRIVILEGES TO AND
CONFERMENT THEREOF UPON SOUTH AFRICAN CITIZENS OR
PERMANENT RESIDENTS OF THE REPUBLIC- - PROVISIONS OF THE CONVENTIONS APPLY
- SOUTH AFRICAN CITIZENS WHO ARE OFFICIALS SHALL
ENJOY FUNCTIONAL IMMUNITIES (ARTICLE 38 OF VIENNA
CONVENTIONS ON DIPLOMATIC RELATIONS AND ARTICLE
71 OF CONSULAR RELATIONS, ARTICLE V OF UN
CONVENTION AND ARTICLE VI OF SPECIALIZED AGENCIES
CONVENTION
34SECTION 14
- REPEAL OF SECTION 16 OF THE PRINCIPAL ACT ON
APPLICATION OF IMMUNITIES AND PRIVILEGES TO AND
CONFERMENT THEREOF UPON SOUTH AFRICAN CITIZENS OR
PERMANENT RESIDENTS OF THE REPUBLIC- - OFFICIALS ARE EXEMPTED FROM TAXATION ON SALARIES
PAID BY THE UNITED NATIONS/SPECIALIZED AGENCIES
(ARTICLE V OF UN CONVENTION AND ARTICLE VI OF
SPECIALIZED AGENCIES CONVENTION - SOUTH AFRICA RECEIVES AN EQUIVALENT AMOUNT TO THE
TAX EXEMPTION BACK IN THE FORM OF A DEDUCTION
FROM ITS MEMBERSHIP DUES PAYABLE TO THE UNITED
NATIONS
35SECTION 14
- REPEAL OF SECTION 16 OF THE PRINCIPAL ACT ON
APPLICATION OF IMMUNITIES AND PRIVILEGES TO AND
CONFERMENT THEREOF UPON SOUTH AFRICAN CITIZENS OR
PERMANENT RESIDENTS OF THE REPUBLIC- - OFFICIAL MEANS MEMBERS OF THE UN STAFF, BUT
NOT THOSE WHO ARE RECRUITED LOCALLY ( GENERAL
ASSEMBLY RESOLUTION 76(1) OF 1946
36SECTION 14
- REPEAL SECTION 17 OF PRINCIPAL ACT ON LEGAL
PERSONALITY OF CERTAIN ORGANIZATIONS AND
INSTITUTIONS - PROVISION IS NOW REFLECTED IN SECTION 3A (3)
37SECTION 15
- SUBSTITUTE SECTION 19 OF THE PRINCIPAL ACT ON
OFFENCES AND PENALTIES BY A NEW SECTION 19 THAT
INCLUDES ALL THE CONVENTIONS - TO DELETE THE SPECIFIC FINE IN ORDER FOR THE
PROVISIONS OF THE ADJUSTMENT OF FINES ACT OF 1991
TO BE APPLICABLE
38SECTION 16
- SUBSTITUTE SCHEDULE 1 OF PRINCIPAL ACT WITH THE
FULL TEXT OF THE VIENNA CONVENTION ON DIPLOMATIC
RELATIONS OF 1961
39SECTION 16
- ARTICLES 2 - 21 WERE ADDED
- establishment of diplomatic relations
- functions of diplomatic missions
- obtaining an agrement from receiving state
- multiple accreditation
- head of mission accredited to more than one state
- appoint members of staff freely
40SECTION 16
- ARTICLES 2 - 21 WERE ADDED
- members of staff from nationality of sending
state nationals only appointed with approval - declaration of persona non grata
- notification of appointment of staff
- size of the mission kept within limits
- establishment of offices in localities other than
those in which the missions are
41SECTION 16
- ARTICLES 2 - 21 WERE ADDED
- presentation of credentials
- classes of heads of missions
- class to which a head of mission is to be
assigned to be agreed between states - precedence of heads of missions to be notified to
the Ministry - reception of heads of missions to be uniform
42SECTION 16
- ARTICLES 2 - 21 WERE ADDED
- vacancy of post of heads of mission - charge
daffaires ad interim - right to use the flag and emblem
- facilitation of acquisition of accommodation for
offices
43SECTION 16
- ADD ARTICLES 25, 26, 42 - 53
- accord facilities for performance of functions
- subject to laws and regulations, freedom of
movement and travel in territory - prohibition to work for personal profit
- ending of functions of diplomat
- evacuation assistance in cases of armed conflict
- suspension of diplomatic relations
44SECTION 16
- ADD ARTICLES 25, 26, 42 - 53
- temporary protection of interest of third state
by sending state with the approval of receiving
state - no discrimination in treatment of missions
- end clauses
- signature, ratification, accession and entry
into force
45SECTION 17
- SUBSTITUTE SCHEDULE 2 OF THE PRINCIPAL ACT WITH
THE FULL TEXT OF THE VIENNA CONVENTION ON
CONSULAR RELATIONS OF 1963
46SECTION 17
- ADD ARTICLES 2,3, 4, 6-16
- exercise of consular functions
- establishment of consular post
- consular functions
- exercise consular functions outside district
- exercise consular functions in a third state
- exercise consular functions on behalf of third
state
47SECTION 17
- ADD ARTICLES 2,3, 4, 6-16
- classes of heads of consular posts
- appointment and admission of heads of consular
posts - consular commission or notification of
appointment - the exequatur
- provisional admission
48SECTION 17
- ADD ARTICLES 2,3, 4, 6 - 16,18-30
- notification to authorities of appointments
- exercise of functions in case of vacancy,etc
- precedence between heads of consular posts
- appointment of same person by more than one
states - appointment of members of consular staff
- size of consular staff
49SECTION 17
- ADD ARTICLES 21-30
- precedence between officers of consular posts
- nationality of consular officials
- declaration of persona non grata
- notification of appointments, arrivals, etc
- termination of functions of member of post
- evacuation assistance
- suspension of consular relations/closure
50SECTION 17
- ADD ARTICLES 21-30, 34, 36-38
- facilities for work of consular post
- use of flag and coat-of-arms
- facilitate acquisition of accommodation
- freedom of movement
- contact with nationals of sending state
- information in cases of deaths, guardianship,etc
- communication with authorities
51SECTION 17
- ADD ARTICLES 40, 42, 46, 47,59
- protection of consular officials
- notification of arrest, detention or prosecution
- exemption from registration of aliens and
residence permits - exemption from work permits
- protection of consular premises (honorary
consuls)
52SECTION 17
- ADD ARTICLES 63- 65, 68,69
- criminal proceedings against honorary consul
- protection of honorary consular officers
- exemption from registration of aliens and
residence permits - appointment and receiving of honorary consuls
optional - consular agents not heads of consular posts
53SECTION 17
- ADD ARTICLES 72-79
- non-discrimination between states
- relationship with other conventions
- final provisions
- signature, ratification, accession, entry into
force, etc
54SECTIONS 18 AND 19
- INSERTION OF SCHEDULES 2A AND 2B REFLECTING THE
FULL TEXT OF THE CONVENTION ON THE PRIVILEGES AND
IMMUNITIES OF THE UNITED NATIONS OF 1946 AND OF
THE CONVENTION ON THE PRIVILEGES AND IMMUNITIES
OF THE SPECIALIZED AGENCIES OF 1947
55IMMUNITIES AND PRIVILEGES OF UN AND SPECIALIZED
AGENCIES
- Legal capacity to contract in South Africa
- Property and assets immune from legal process
- Property and assets are inviolable
- Exemption from direct taxes, customs duties and
prohibitions on imports and exports - Freedom of communication including the sending
and receiving of communications
56IMMUNITIES AND PRIVILEGES OF REPRESENTATIVES OF
MEMBER STATES
- Immunity from arrest or detention
- Immunity from all legal process in respect of all
official acts and words spoken or written - Immunity from seizure of their personal baggage
- Inviolability of papers and documents
- Facilities in respect of currency and exchange
regulations that are accorded to diplomats - Other immunities that are accorded to diplomats
but no exemption from customs duties or sales tax
57IMMUNITIES AND PRIVILEGES OF REPRESENTATIVES OF
MEMBER STATES
- Member States have a duty to waive the immunity
where this would impede the course of justice - Immunities do not apply to representatives of a
Member State in their home States
58IMMUNITIES AND PRIVILEGES OF OFFICIALS OF THE
ORGANISATIONS
- Immunity from all legal process in respect of all
official acts and words spoken or written - Tax exemptions in respect of their salaries
- Facilities in respect of currency and exchange
regulations that are accorded to diplomats - The same repatriation facilities in a time of
crises that are accorded to diplomats - Customs exemption for the importation of
household effects on first arrival
59IMMUNITIES AND PRIVILEGES OF OFFICIALS OF THE
ORGANISATIONS
- The Secretary General and Assistant Secretaries
General and their families will be accorded full
diplomatic immunities and privileges - The Secretary General has a duty to waive the
immunity where this would impede the course of
justice
60IMMUNITIES AND PRIVILEGES OF EXPERTS OF THE
ORGANISATIONS
- Immunity from arrest or detention
- Immunity from all legal process in respect of all
official acts and words spoken or written - Immunity from seizure of their personal baggage
- Inviolability of papers and documents
- Freedom to send and receive communications
- Facilities in respect of currency and exchange
regulations that are accorded to diplomats
61IMMUNITIES AND PRIVILEGES OF EXPERTS OF THE
ORGANISATIONS
- The Secretary General has a duty to waive the
immunity where this would impede the course of
justice
62GENERAL PROVISIONS
- UN LAISSEZ PASSER (UNLP)
- Recognition as travel document
- Expeditious issuing of visas to holders